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This article was translated by an automatic translation system, and was therefore not reviewed by people.
The issue has great importance in the legal world for those who will act in civil law and also for practitioners of medicine, so they have a view of medical error from a legal.
We will address this topic in more short, but not really address the problem instead of in a responsible manner. Aims at analyzing the problems most relevant to the liability of the physician.
Liability
The liability is the obligation imposed on a person, who caused an injury to another person in a suit himself, other people or are their dependents.
An individual has the obligation not to cause harm to others, but if this occurs, the person causing the damage shall have the obligation to indemnify the loss. (See Venoza, Civil Law, IV, 4th edition, Atlas Ed.).
The Civil Code deals with liability in the arts. 927 ff. Take the art. 927 of the Civil Code:
"Art 927. That, in tort (arts. 186 and 187), causing damage to others, is obliged to repair it. "
Art. 186 of the Civil Code is the basis for indemnification for liability. Take:
"Art 186. Who, by voluntary action or omission, negligence or recklessness, violate law and harm others, even if only moral, commits an unlawful act. "
The Liability is subdivided into:
Liability subjective
The liability is characterized by subjective finding of guilt on the duty to indemnify. "The agent wants the result of injury or damage takes the risk of it occurring, or acts with recklessness, negligence or incompetence. Occur in the first case, and intent in the latter case, guilt. The law allows them, in practice, as equivalent, with the name of guilt "(3).
Another author who also reinforces this view on liability of the kind is subjective Kfouri Miguel Neto (6), when he says that "(...) The responsibility of the medical professional, and we still stand in the status of the fault - the responsibility victim to prove intent or negligence strict sense of the agent, for the injury. "
Objective liability
The liability objective is to relieve the guilt feature. It is a liability without fault where, for there to indemnification is not necessary to show that the fault of the agent causing the damage.
"The objective liability, or at risk, is required to repair damage, regardless of any notion of culpability or guilt. She was born from the practice of mere facts antijurídicos, usually associated with certain activities (and therefore also risk being activities "normally developed by the author of the damage" - cf. Civil Code, art. 927, sole paragraph). As we know, the antijuridicidade objective is given in nature: there is always the fact that (action, omission, fact natural) rights offends others in a manner contrary to law, regardless of any court of censorship that may be present and may also be referred to someone . (8)
Within this objective liability, there are two theories to be observed: the risk theory and created the risk benefit theory.
Take the case of Silvio Venoza except on the theory of risk created:
"In examining the theory of risk, more accurately called the problems created in this phase of civil liability for post-modernity, which takes into account is the potential to cause harm; concept introduced by the Civil Code of 1942 (art. 2050) . It takes into account the danger of the activity causing the damage to nature and the nature of the means used. "
"Theory of the risk created: Has a greater extent, considering that every time someone performs an activity which deprives the advantage, but that creates risk of damage to third parties, should bear the burden of costs (11)."
The theory of risk benefit is, that when you get the profit, the benefit should bear the obligation to compensate their victims. Aimed at the accident at work, but today is also used in other branches of law, such as consumer protection (13).
Briefly, the liability does not require objective verification of the presence of fault requiring only the causal link between the act of the agent causing the damage and the harmful event. For the defendant is exempt from liability case must prove the incident or the exclusive fault of the victim and is therefore excluded from the causation.
Obligations of means and outcome
The obligations of means are those where the agent is obliged to use all the means necessary to try to get a beneficial result.
The obligations of result are those where the agent is obliged to obtain the desired result. It is directly, linked to the outcome.
The obligation of result, "the debtor undertakes to achieve certain end without which will not have fulfilled its obligation." Or to the outcome or flat will bear the consequences (15).
Liability of the physician
Legal
Some authors advocate the doctor-patient relationship as a contract for services. However, it is not, in most cases, the contract of the type of result. The performance of the doctor, most specialties, is only required to act as the parameters imposed by the science.
Venoza (18) says that the contract of the doctor-patient relationship is usually to provide services, but can be characterized differently depending on the situation of the facts. This same contract requires the participation of the patient, directly or indirectly, to work.
The obligations assumed by doctors in order to contract for services and contractual liability, is considered an obligation of means.
We believe that if a person hires a physician to use their services, the legal transaction between them is a signed contract, and expensive switch.
Venoza (21) believes that if the public hospital is "the doctor who serves as officer, causing injury to patients, should be absorbed by the strict liability of art. 37, § 6, of the Federal Constitution. The State shall have the right to return against the doctor if he has acted with fault. Liability in the state, in terms of medical care, what is at stake is the so-called lack of public service to the particular causes of damage, and not the responsibility of a public official in particular.. "
The liability may occur, for example, when a doctor to help someone in the street immediately. The patient chose not to be rescued by one doctor in particular, but was attended by questions of provision of assistance can not be thus concluded a contractual relationship. If the doctor is not ready to meet that person, could be typified the behavior of default of distress, occurring therefore the responsibility in the criminal sphere.
Informed consent
The doctor has the duty to inform the patient throughout the procedure to be adopted. Should inform the possibility of other appropriate treatments and their possible consequences. Doing this, the doctor is giving the patient the opportunity to choose the treatment that best suits you.
If the doctor does not know about all the risks of the procedure that will take and will be a problem as a result of this procedure, the medical professional will be responsible for the liability to indemnify the patient suffering the damage.
The duty to compensate for the lack of informed consent is being characterized is the causal link between the injury and lack of information that should have been made by the physician.
It may happen in case the medical act correctly in all procedures, or to act with skill, prudence and diligence and a damage occurs to the patient. This damage would result from the surgery done. Although the doctor has acted as was expected in surgery, failed to inform the patient about the possible damage resulting from surgery. There was no fault of the doctor, but a lack of duty to inform and be liable for it.
It is the duty of the physician inform the patient clearly, objectively and effectively.
The evidential burden is the doctor. It is the doctor who must prove that there was informed consent of the patient. The test should be done when possible in documentary form.
Medical negligence
In assessing the fault must consider the expertise of the professional and the circumstances in which the acts were performed.
In short, fault is the lack of observation of a duty of the agent should know and observe.
In civil liability for its characterization must be done to negligence, recklessness and incompetence.
This fault should be considered in accordance with current medical science. A doctor can not be held liable for damage caused by a failure of their profession. Otherwise we allocated the role of God to doctors, not the role of mere human beings who exercise their profession according to current science of medicine.
Liability in plastic surgery
The injury is characterized when the plastic surgeon can not the desired result. The activity of aesthetic plastic surgery creates a binding obligation of result to that which was promised in medical consultation.
Where it is not an aesthetic plastic surgery, the surgeon is not bound to result. The obligation of means and is, therefore, act according to their science does not fall into neglect, carelessness and inexperience.
Responsibility of the anesthesiologist
The anesthesiologist monitors the patient throughout the surgery to know if there is rejection of the act or medicine anaphylactic shock. The legal problem is to assess the proper care and predictability of the physician.
Code of Consumer Affairs
The medicine has its peculiarities and these should be addressed. Venoza (33) says that "according to legal diction, is severally liable, regardless of the determination of guilt, all providers participating in the chain of supply of services:" Health insurance. Care insurance by trainee. Permanent injury. Reduction of working capacity. Indemnification by the hospital "(RT 559/193). Establishing hospital and medical service providers can be held responsible.. "
If it is proven that the patient is hipossuficiente on the doctor may be a reversal of the burden of proof.
Conclusions
Bearing in mind all the above in this work can draw some conclusions.
The doctor has liability subjective. The objective is liability arising from the law.
The obligation assumed by the medical and means, except the activity of aesthetic plastic surgery which is the result.
The medical professional must work with care, skill and diligence. In case of negligence, imprudence or inexperience will be the liability of the physician. This may also be liable in case of no informed consent of the patient.
In the case of aesthetic plastic surgery, there is bound to result from the principal obligation. The obligation is assumed to result. If a reparative plastic surgery is not obligation of result, but of means.
The anestisiologia is an obligation of means and may meet jointly the anesthesiologist and surgeon.
The Consumer Defense Code characterizes the medical activity as a subjective responsibility may involve the reversal of the burden of proof.
Medical error itself is one that is characterized by the misconduct of the doctor, caused by omission or by Voluntary Action taken with incompetence, recklessness and negligence.
You can also view medical error as the lack of information from the physician to the patient, preventing him to choose the treatment that best suits you.
This article was translated by an automatic translation system, and was therefore not reviewed by people.